Petition for Writ of Certiorari — Illinois v. Wardlow

”_—— + ont i

~ FILED

98108 6 DEC 2 21998

OFFICE OF THE ClckK

No.

IN THE

Supreme Court of the Gnited States

OCTOBER TERM, 1998

THE STATE OF ILLINOIS,

Petitioner,

Vs.

SAM WARDLOW,

Respondent.

On Petition for a Writ of Certiorari

to the Supreme Court of Illinois

PETITION FOR A WRIT OF CERTIORARI

JAMES E. RYAN

Attorney General

State of Illinois

WiLLIAM L. BROWERS

Assistant Attorney General

100 West Randolph Street

Suite 1200

Chicago, Illinois 60601

RICHARD A. DEVINE Attorneys for Petitioner

State’s Attorney

Cook County, Illinois

RENEE GOLDFARB*

VERONICA XIMENA CALDERON

THEODORE FOTIOS BURTZOS

Assistant State’s Attorneys

309 Richard J. Daley Center

Chicago, Illinois 60602

(312) 603-5496

Of Counsel *Counsel of Record

Midwest Law Printing Co., Chicago 60610, (312) 321-0220 a¢

i

QUESTION PRESENTED FOR REVIEW

Whether a person’s sudden and unprovoked flight

from a clearly identifiable police officer, who is patrol-

ling a high crime area, is sufficiently suspicious to

justify a temporary investigatory stop pursuant to Terry

v. Ohio.

il

TABLE OF CONTENTS

PAGE

QUESTION PRESENTED FOR REVIEW ........ i

TABLE OF CONTENTS ..ccccccccsvcccceces ii

TABLE OF AUTHORITIES .............006: iii

OPTNIOSGD DGAP occ cence vvdvaceseeneaune 1

STATEMENT OF JURISDICTION ............. 1

CONSTITUTIONAL PROVISION INVOLVED ....2

STATEMENT OF THE CASE .............+++:- 2

REASONS FOR GRANTING THE WRIT ........ 5

I.

THE PRESENT ISSUE HAS BEEN LEFT

OPEN BY THIS COURT IN TWO PRIOR CAS-

PPPPeErEevrrerrrcy le ro 5

Il.

THE FEDERAL AND STATE COURTS THAT

HAVE CONSIDERED THE PRESENT ISSUE

ARE IN CONFLICT .......2ececeeeeeeees 7

Ill.

THE ILLINOIS SUPREME COURT'S OPIN-

ION CONCERNS AN IMPORTANT QUESTION

OF FEDERAL CONSTITUTIONAL LAW

WHICH SHOULD BE DECIDED BY THIS

COURT TO GIVE NEEDED GUIDANCE TO

LOWER COURTS AND LAW ENFORCEMENT

OFFICIALS THROUGHOUT OUR NATION .... 10

COMCRAMIBON .. . cca vusstdevewnay oe 12

APPUMIME ......0cccectsnueeeee infra

TABLE OF AUTHORITIES

Cases: PAGE(S)

Britt v. State, 673 So. 2d 934

EE SE a ee i)

California v. Hodari D.,

ee 6, 7, 11

Dimascio v. Municipality of Anchorage,

813 P.2d 696 (Alaska App. 1991) ............ )

Harris v. State, 205 Ga. App. 813,

cr ecceee 8

Hopkins v. State, 661 Sv.28 774

re Oe ck oe ewe SS)

Michigan v. Chesternut, 486 U.S. 567

DUPE s oes atiebeee 6660000 5, 6, 7, 11

People v. Holmes, 81 N.Y.2d 1056,

PC cles cccccsccececcce )

People v. Shabaz, 378 N.W.2d 451

EI ree i)

People v. Souza, 9 Cal. 4th 224,

Ee i kes cecees 8

People v. Wilson, 784 P.2d 325 (Colo. 1989) ...... 4

Platt v. State, 589 N.E.2d 222 (Ind. 1992) ..... 8, 11

State v. Anderson, 155 Wisc. 2d 77,

464 N.W.2d 763 (1900) .............. 7, 8,11

iv

State v Andrews, 565 N.E.2d 1271

CG, TE 6 bow cd eadbhs 66 bbs bo oes een 5

State v. Butler, 415 &.F.2d 719 (N.C. 1992)....... 8

Stcte v. Hicks, 241 Neb. 3f7,

488 N.W.2d 359 (1992) ..... cc cece eens 4

State v. Jackson, 147 Wis.2d 824,

434 N.W.2d 386 (1989) .... 2... cee eee eee R

State v. Johnson, 444 N.W.2d 824

ie See . . cancsbsivedoedecevatentens 8

State v. Little, 806 P.2d 749 (Wash. 1991) ....... i

State v. Stinnett, 104 Nev. 398,

. Fs & ') eases ee ra 8

State v. Talbot, 792 P.2d 489

(Utah App. 1900) ........ccccccccecccees 4

State v. Tucker, 136 N.J. 158,

" VR Ff |, a2 r rere Tere a]

State v. White, 660 So. 2d 515

(La. Ct. App. 1905) .. 0... ccc ccveccceces 8

State v. Williamson, 524 A.2d 655

(Conn. App. 1987) ...... 2. cece cececccees 8

Terry v. Ohio, 392 U.S. 1 (1968) .......6- 0 eeeee 5

Tom v. Voida, 963 F.2d 952 (7th Cir. 1992) ....... 7

v

United States v. Cardona-Rivera,

904 F.2d 1149 (7th Cir. 1990) .............. 4

United States v. Green, 670 F.2d 1148

Sees MEE: SRUR Ss Feeet es ceebenc whe 10

United States v. Haye, 825 F.2d 32

Se ee NE coat See babes oak euacus 4

United Staizs v. Jackson, 741 F.2d 223

I ee, Pee nee ee 4

United States v. Lane, 909 F.2d 895

RES ae a ee eee 4

United States v. Pope, 561 F.2d 663

BRR PAE cine 4

United States v. Rundel, 461 F.2d 860

a6 ko a te eee 9, 10

United States v. Vasquez, 534 F.2d 1142

EE in aGP bh wae oe Gh iow’ anddwe 4

United States v. Williams, 314 F.2d 795

Gee ee Ss 0 25% Cae be wae ci ore ae

Watkins v. State, 420 A2d 270 (Md. 1980) ....... a]

Constitutional Provision:

Sees i NNN TET Dn Ges cbc chckicieebe 2

Other Authorities:

Harris, Factors for Reasonable Suspicion:

When Black and Poor Means Stopped

and Frisked, 69 Ind. L.J. 659 (1994) ........

Wayne R. LaFave, SEARCH AND SEIZURE,

sec. 9.4(f) (8rd Ed. 1996) ..........-+-+++-

1

PETITION FOR A WRIT OF CERTIORARI

Petitioner, the State of Illinois, prays for a Writ of

Certiorari to review the judgment and order of the

Illinois Supreme Court which was entered on September

24, 1998.

OPINIONS BELOW

The opinion of the Illinois Supreme Court, which af-

firmed the Illinois Appellate Court’s suppression of the

evidence order and reversed respondent’s conviction,

was entered on £2ptember 24, 1998 and is reported at

183 Ill.2d 306, 701 N.E.2d 484 and reproduced in Ap-

pendix A of this Petition.

The opinion of the Illinois Appellate Court, First Dis-

trict, which suppressed the evidence and reversed re-

spondent’s conviction, was entered on March 18, 1997

and is reported at 287 [ll.App.3d 367, 678 N.E.2d 65

and reproduced in Appendix B of this Petition.

The order of the circuit court denying respondent’s

motion to suppress is unreported.

STATEMENT OF JURISDICTION -

The order and judgment of the Illinois Supreme Court

was entered on September 24, 1998. No Petition for

Rehearing was filed. This Petition for a Writ of Cer-

tiorari is filed within 90 days of that order as required

by Rule i3(1) of the rules of the Supreme Court. The

decision of the Illinois Supreme Court was explicitly

based on federal Constitutional law, in particular on the

Fourth Amendment. Accordingly, the jurisdiction of this

Court is invoked under 28 U.S.C. sec. 1257 (a).

2

CONSTITUTIONAL PROVISION INVOLVED

The Fourth Amendment to the United States Consti-

tution.

The right of the people to be secure in their persons,

houses, papers, and effects, against tinreasonable

searches and seizures, shall not be violated, and no

Warrants shall issue, but upon probable cause, support-

ed by Oath or affirmation, and particularly describing

the place to be searched, and the person or things to be

seized.

STATEMENT OF THE CASE

Respondent, Sam Wardlow, was charged with two

counts of Unlawful Use of Weapon by a Felon and two

counts of Unlawful Use of Weapon under Indictment

Number 95-CR-26952. (CL. 9-14) Respondent filed a pre-

trial Motion to Suppress Physical Evidence and a hear-

ing was held on this motion on October 25, 1995. (R. Al,

CL. 22)

The only witness called upon to testify at the hearing

was a nine year veteran Chicago police officer, Timothy

Nolan. (R. A4, All) Officer Nolan testified that on Sep-

tember 9, 1995 he was assigned to the Special Opera-

tions Section of the Chicago Police Department’s Elev-

enth District. (R. A4) On that day Officer Nolan was

adorned in his full police uniform which included his

badge, name tag and a Chicago Police Department patch

on his arm. (R. All) Officer Nolan stated that one of the

locations in the 11th District that has “high narcotics

traffic” is in the area of 4035 West Van Buren. (R. A8,

AQ)

3

Officer Nolan stated that his assignment on Septem-

ber 9, 1995 was to investigate narcotics sales in this

area of the 11th District. (R. A9) As such, Officer Nolan

and seven other officers converged on this area in four

separate cars. (R. A9) As these four police cars were

driving east on Van Buren Street, Officer Nolan and his

partner, Officer Harvey, were in the last car. (R. A4, A9,

A10) He could not recall if their police car was marked

or unmarked. (R. A4-A5) Officer Nolan explained that

the purpose for having four cars converge on the same

location at the same time is because normally there is

an enormous amount of people in such areas, some of

whom are there as customers while others served as

lookouts. (R. A9)

As the officers were cruising down Van Buren Street,

Officer Nolan saw the respondent standing near the

front of 4035 West Van Buren Street. (R. A8-A9) Re-

spondent then looked at the officers and took off run-

ning. (R. A6, Al0) Officer Nolan could see that the re-

spondent was carrying a white opaque bag under his

arm while he was running. (R. A7, A8, A10)

Officer Nolan then turned his police car southbound

and saw the respondent running down a gangway. (R.

A6, Al0) As he kept driving, he then saw the respon-

dent running southbound through an alley. (R. A6) Offi-

cer Nolan and his partner were eventually able to catch

up to and corner the respondent in the vicinity of 4036

West Congress Street. (R. A6, A10)

‘- Still dressed in uniform, with his badge, patch and

name tag visible, Officer Nolan exited his vehicle and

stopped the respondent for the purpose of conducting a

field interview. (R. A7, Al1) Officer Nolan stated that it

4

was common to find weapons in the vicinity where

narcotics are sold. (R. Al3) Without announcing his

office or asking the respondent any questions, Officer

Nolan conducted a “protective pat-down” search “for

[his] own safety.” (R. A7) He did this by squeezing the

outside of the white opaque plastic bag that respondent

was holding under his arm. (R. A7, Al1) The object that

Officer Nolan felt inside the bag was hard, heavy and

similar in shape to a revolver. (R. All) Officer Nolan

then looked inside the bag and found a Colt .38 caliber

handgun loaded with five live bullets. (R. A12) It was at

that time that the officer placed the respondent under

arrest. (R. A8)’

The parties presented their arguments to the trial

judge on October 25th and December 6th of 1995. (R.

A14-A18, B5-B12) After hearing the respective argu-

ments, the trial court judge denied respondent’s sup-

pression motion. (R. B13) In denying respondent’s

motion, the trial judge observed that it is common

knowledge that police officers know of the areas in

which drugs are being sold, and do have knowledge of

the general areas where contraband, including weapons,

are being carried. (R. B12) The judge noted that police

officers have a right to drive up to these areas. The

judge also observed that anybody can identify a police

car, be it marked or unmarked. (R. B13) Under all of

the attendant circumstances, including respondent’s

awareness of the circumstances that brought about the

' The transcript of the Report of Proceedings does not indicate

the precise time of defendant’s arrest. However, Officer

Nolan’s Arrest Report indicates that defendant was arrested

at 12:15 p.m. (CL. C4)

5

officers’ presence in that area and his flight upon look-

ing in their direction, the trial judge concluded that the

officers had a right to stop and question respondent, and

in doing so, they had a right to protect themselves by

conducting a pat-down search. (R. B13) Finally, the

judge noted that once a person flees, after having looked

in the direction of a police officer, “there’s reasons to

think there’s a problem [; the officers] have a right to

make inquiry.” (R. B14)

Following a stipulated bench trial, the respondent was

found guilty of Unlawful Use of a Weapon by a Felon

and sentenced to two years imprisonment.

REASONS FOR GRANTING THE WRIT

THE PRESENT ISSUE HAS BEEN LEFT OPEN BY

THIS COURT IN TWO PRIOR CASES.

The present case squarely presents this Court with an

issue that has twice eluded it. Specifically, the issue is

whether police officers, who are patrolling a high crime

area, are justified in temporarily stopping a person pur-

suant to Terry v. Ohio, 392 U.S. 1 (1968), when that

person, suddenly and without provocation, breaks and

runs away at the mere sight of the police.

First, in Michigan v. Chesternut, 486 U.S. 567 (1988),

this Court granted a writ of certiorari to consider the

following two questions:

“whether the officers’ pursuit of respondent

constituted a seizure implicating Fourth Amend-

ment protections, and, if so, whether the act of

fleeing, by itself, was sufficient to constitute rea-

sonable suspicion justifying that seizure.” (em-

phasis added) 486 U.S. at 572.

6

This Court answered the first question by holding that

Respondent Chesternut had not been seized by the

police during the pursuit. Accordingly, this Court noted

that,

“[blecause we conclude that the officers’ con-

duct did not constitute a seizure, we need not

reach the second question.” 486 U.S. at 572.

Second, in California v. Hodari D., 499 U.S. 621

(1991), the two potential issues for resolution were

whether Respondent Hodari had been seized at the time

he dropped the drugs and, ‘f he had, whether Hodari’s

flight gave the officer sufficient reasonable suspicion to

justify the seizure. 499 U.S. at 623. This Court stated

that, “[a]s this case comes to us, the only issue present-

ed is whether, at the time he dropped the drugs, Hodari

had been ‘seized’ within the meaning of the Fourth

Amendment”. 499 U.S. at 623. This was so because the

State of California had conceded “that Officer Petoso did

not have the ‘re se ble suspicion’ required to justify

stopping Hodari [under Terry v. Ohio)”. 499 U.S. at 623

nl. Although Justice Scalia, writing for the majority,

opined “[t]hat it would be unreasonable to stop, for brief

inquiry, young men who scatter in panic upon the mere

sighting of the police is not self-evident, and arguably

contradicts proverbial commonsense. See Proverbs 28:1

(‘The wicked flee when no man pursueth’)”, he noted

that “[w]e do not decide that point here but rely entirely

upon the State’s concession.” 499 U.S. at 623 nl. Con-

sequently, it is apparent that, on two occasions and for

two different reasons, the present issue has escaped this

Court’s scrutiny. In the instant case, however, the ques-

tion surrounding respondent’s sudden flight from the

police in a high crime area is the only issue to be re-

7

solved. Further, the petitioner, unlike the State of Cali-

fornia, is by no means conceding that reasonable sus-

picion was lacking for a temporary investigative stop.

Thus, the present case will enable this Court to finally

address this important issue.

Il.

THE FEDERAL AND STATE COURTS THAT HAVE

CONSIDERED THE PRESENT ISSUE ARE IN CON-

FLICT.

Two members of this Court have suggested that flight

from a clearly identified police officer in a high crime

area can, in and of itself, furnish sufficient ground for a

limited investigatory stop. Michigan v. Chesternut, 486

U.S. at 576 (Justice Kennedy, concurring, joined by Jus-

tice Scalia) (“It is no bold step to conclude, as the Court

does, that the evidence should have been admitted, for

respondent’s unprovoked flight gave the police ample

cause to stop him.”) See also California v. Hodari D.,

499 U.S. at 623 nl. However, as noted supra, this Court

has yet to address this specific issue. See Tom v. Voida,

963 F.2d 952, 985 (7th Cir. 1992) (Federal Court of

Appeals acknowledges that Supreme Court “has not de-

cided whether flight alone may support a finding of rea-

sonable suspicion.”) In this Court’s absence, the deci-

sions of the several state and federal courts that have

ruled on this issue have produced mixed results.

On the one hand are state court opinions which hold

that flight from a police officer in a high crime area can

be sufficient for an investigatory stop. Typical of these

is State v. Anderson, 155 Wisc. 2d 77, 454 N.W.2d 763

(1990) where the Supreme Court of Wisconsin stated

that:

8

Flight at the sight of police is undeniably sus-

picious behavior. Although many innocent expla-

nations could be hypothesized as the reason for

the flight, a reasonable police officer who is

charged with enforcing the law as well as main-

taining peace and order cannot ignore the infer-

ence that criminal activity may well be afoot.

Although it does not rise to a level of probable

cause, flight at the sight of a police officer

certainly gives rise to a reasonable suspicion

that all is not well. Under these circumstances,

“[i]t would be poor police work indeed for an

officer . . . to have failed to investigate further.”

(citing Terry, 392 U.S. at 23)

**# * *

Accordingly, we hold that behavior which evinces

in the mind of a reasonable police officer an in-

tent to flee from the police is sufficiently sus-

picious in and of itself to justify a temporary

investigative stop by the police. Such flight,

although not illegal, gives rise to a reasonable —

suspicion that some sort of wrongful activity is

afoot. Anderson, 454 N.W.2d at 766, 768.

State cases that have ruled similarly include Platt v.

State, 589 N.E.2d 222 (Ind. 1992); State v. Little, 806

P.2d 749 (Wash. 1991); State v. Andrews, 565 N.E.2d

1271 (Ohio 1991); State v. Stinnett, 104 Nev. 398, 760

P.2d 124 (1988); State v. Williamson, 524 A.2d 655

(Conn. App. 1987); State v. Johnson, 444 N.W.2d 824

(Minn. 1989); Harris v. State, 205 Ga. App. 813, 423

S.E.2d 723 (1992); State v. White, 660 So. 2d 515 (La.

Ct. App. 1995); People v. Souza, 9 Cal. 4th 224, 885

P.2d 982 (1994); State v. Jackson, 147 Wis.2d 824, 434

N.W.2d 386 (1989); State v. Butler, 415 S.E.2d 719

(N.C. 1992).

9

On the other hand are state court opinions which hold

that flight from the police in a high crime area is

insufficient for an investigatory stop. Typical of these is

the instant case where the Illinois Supreme Court, in

interpreting the Fourth Amendment, held that breaking

and running away from a police officer, in a high crime

area, can never be alone sufficient to conduct a tempo-

rary investigative stop. The Illinois Supreme Court

reasoned that, while flight in a high crime area may

produce an inference of guilt, the officer must be “able

to point tw specific facts corroborating the inference of

guilt gleaned from defendant’s flight” before he can

make a lawful investigatory stop. (App. 12) State cases

that have similarly held include State v. Hicks, 241

Neb. 357, 488 N.W.2d 359 (1992); State v. Tucker, 136

N.J. 158, 642 A.2d 401 (1994); People v. Shabaz, 378

N.W.2d 451 (Mich. 1985); State v. Talbot, 792 P.2d 489

(Utah App. 1990); Britt v. State, 673 So. 2d 934 (Fla.

App. 1996); Hopkins v. State, 661 So.2d 774 (Ala. App.

1994); Dimascio v. Municipality of Anchorage, 813 P.2d

696 (Alaska App. 1991); People v. Wilson, 784 P.2d 325

(Colo. 1989); People v. Holmes, 81 N.Y.2d 1056, 619

_ N.E.2d 396 (1993); Watkins v. State, 420 A2d 270 (Md.

1980).

The federal courts are also divided on this issue.

Cases holding that flight can be sufficient for a tempo-

rary stop include United States v. Cardona-Rivera, 904

F.2d 1149 (7th Cir. 1990); United States v. Lane, 909

F.2d 895 (6th Cir. 1990); United States v. Jackson, 741

F.2d 223 (8th Cir. 1984); United States v. Pope, 561

F.2d 663 (éth Cir. 1977); United States v. Vasquez, 534

F.2d 1142 (5th Cir. 1976); United States v. Haye, 825

F.2d 32 (4th Cir. 1987) United States v. Rundel, 461

10

F.2d 860 (3rd Cir. 1972). Federal cases holding that

flight is insufficient include United States v. Green, 670

F.2d 1148 (D.C. Cir. 1981) and United States v. Wil-

liams, 314 F.2d 795 (6th Cir. 1963).

Additionally, Professor Wayne R. LaFave has reviewed

and discussed several of these conflicting cases in his

treatise on search and seizure. 4 Wayne R. LaFave,

SEARCH AND SEIZURE, sec. 9.4(f) at 176-182 (3rd Ed.

1996). Finally, one legal commentator has discussed the

instant issue and the conflicting cases and has made

various proposals to resolve this problem. See Harris,

Factors for Reasonable Suspicion: When Black and Poor

Means Stopped and Frisked, 69 Ind. L.J. 659, 671-675,

681 (1994).

In short, state and federal courts are in irreconcilable

conflict over the instant issue. As such, given the im-

portance and frequency of occurrence of this issue, the

existing conflict warrants this Court’s resolution.

Ill.

THE ILLINOIS SUPREME COURT’S OPINION CON-

CERNS AN IMPORTANT QUESTION OF FEDERAL

CONSTITUTIONAL LAW WHICH SHOULD BE DE-

CIDED BY THIS COURT TO GIVE NEEDED GUID-

ANCE TO LOWER COURTS AND LAW ENFORCEMENT

OFFICIALS THROUGHOUT OUR NATION.

Every single day law enforcement officers at all levels

throughout our country are confronted with the issue

presented in the instant case: whether to chase and

temporarily stop a person in a high crime area who runs

away at the mere sight of the police. The present case

presents this Court with the perfect vehicle to visit and

resolve this important and constantly reoccurring ques-

tion.

ll

First, it is beyond question that the Illinois Supreme

Court decided the present case under federal Constitu-

tional law. (App. 3-4, 12) See Michigan v. Chesternut,

486 U.S. at 571 n3. Second, the factual matrix of the

present case is virtually identical to that of Michigan v.

Chesternut, supra, and California v. Hodari D., supra.

‘he only noteworthy difference is that, while Respon-

dents Chesternut and Hodari dropped the contraband

drugs while they were being pursued, Respondent Ward-

low kept the contraband gun in his possession until he

was stopped and patted down. (App. 1, 2, 14) Third, the

type of flight from police in issue here is of the most

extreme kind: running at full speed. The present case

does not involve a lesser means of movement such as

walking away, whether slowly or swiftly, from a police

officer. Fourth, a further delay in considering this issue

will only increase and polarize the present conflict

among the lower courts, while adding nothing to the

debate. Said otherwise, this issue is ripe for this Court’s

review. Fifth, lower courts are relying on the suggestion

of two members of this Court, noted supra at 7, that

flight in a high crime area is sufficient for a temporary

investigative stop. See Platt v. State, 589 N.E.2d at 226,

State v. Anderoon, 454 N.W.2d at 767. Petitioner sub-

mits that it would be prudent for this Court to grant the

present ;etition and determine whether or not this is

also the view of the majority of this Court.

Finally, the present Illinois Supreme Court opinion

essentially gives citizens the license, when they see a

peace officer in a high crime area, to just break and run

away. This puts the officers in the unenviable position

of having to shrug their shoulders and helplessly stand

watching while such persons escape. The Petitioner re-

12

spectfully submits that the present case presents this

Court with the ideal means to address and rectify this

untenable state of affairs.

CONCLUSION

For all the foregoing reasons, the Petitioner respect-

fully prays that this Honorable Court grant the instant

petition for Writ of Certiorari to review the judgment of

the Illinois Supreme Court.

Respectfully submitted,

JAMES E. RYAN

Attorney General

State of Illinois

WILLIAM L. BROWERS

Assistant Attorney General

100 West Randolph Street

Suite 1200

Chicago, Illinois 60601

Attorneys for Petitioner

RICHARD A. DEVINE

State’s Attorney

Cook County, Illinois

RENEE GOLDFARB*

VERONICA XIMENA CALDERON

THECDORE FOTIOS BURTZOS

Assistant State’s Attorneys

309 Richard J. Daley Center

Chicago, Illinois 60602

(312) 603-5496

Of Counsel *Counsel of Record

APPENDICES

App. 1

APPENDIX A

Opinion of The Illinois Supreme Court

Docket No. 83061, Filed September 24, 1998

THE PEOPLE OF THE STATE OF ILLINOIS,

Appellant, v. SAM WARDLOW, Appellee.

JUSTICE HARRISON delivered the opinion of the

court:

Defendant, Sam Wardlow, was convicted of unlawful

use of a weapon by a felon (720 ILCS 5/24-1.l(a) (West

1994)) following a stipulated bench trial in Cook County

and was sentenced to a term of two years’ imprison-

ment. On appeal, the appellate court reversed defen-

dant’s conviction, finding that defendant’s motion to

suppress evidence should have been granted because

the revolver seized from him was discovered as a result

of an improper investigatory stop. 287 Ill. App. 3d 367.

We allowed the State’s petition for leave to appeal. 166

Ill. 2d R. 315(a); 145 Ill. 2d R. 604(a\(2).

At the hearing on defendant’s motion to suppress,

Cfficer Timothy Nolan testified that on September 9,

1395, he and his partner, Officer Harvey, were assigned

to the special operations section of the Chicago police

department. On that date, Nolar and Harvey were

ainong eight officers in four cars travelling eastbound

on West Van Buren Street with the purpose of inves-

tigating narcotics sales in that area. Nolan stated that

he was working in uniform, but did not recall whether

the police car he drove, the last in the “caravan,” was

marked or unmarked.

Nolan testified that as he was driving, he observed

defendant standing in front of 4035 West Van Buren.

App. 2

Defendant, who did not appear to be violating any laws,

looked in the officers’ direction and then fled. Nolan

turned his vehicle southbound toward Congress Ave-

nue, continuing to observe defendant, who ran south-

bound through a gangway and then through an alley.

Nolan stated that defendant, who was carrying a white

opaque bag under his arm, was cornered in the vicinity

of 4036 West Congress when he “ran right towards us.”

Nolan exited his car and stopped defendant. Without

announcing his office or asking any questions, he con-

ducted a protective pat-down search of defendant.

Nolan testified that he could not see inside the bag

defendant was carrying so he “squeezed” the bag and

felt a very heavy, hard object ‘that had a similar shape

to a revolver or a gun.” Believing the object to be a

weapon, Nolan opened the bag and found a .38-caliber

handgun containing five live rounds of ammunition.

Nolan then placed defendant under arrest.’

Responding to the State’s question as to why he “went

to that location on that date and time,” Nolan answered

that it was “one of the areas in the 11th District that’s

high narcotics traffic.” Nolan further testified that,

based upon his experience in investigating areas in

which narcotics were sold, it was common for there to

be weapons “in the near vicinity” and he considered

that fact as he approached “that specific scene.” After

hearing arguments by the parties, the trial court denied

defendant’s motion to suppress.

' While no testimony was presented as to the precise time of

defendant’s arrest, the record contains Nolan’s arrest report,

which indicates a time of 12:15 p.m.

App. 3

Generally, a trial court’s ruling on a motion to sup-

press evidence is subject to reversal only if manifestly

erroneous. People v. Dilworth, 169 Ill. 2d 195, 201

(1996). This clearly erroneous or manifestly erroneous

test is based on the understanding that suppression

motions usually raise mixed questions of law and fact.

See People v. Frazier, 248 Ill. App. 3d 6, 12 (1993).

However, where, as here, neither the facts nor the

credibility of the witnesses is contested, the determina-

tion of whether there is reasonable suspicion warrant-

ing an investigatory stop is a legal question which a

reviewing court may consider de novo. See In re D.G.,

144 Ill. 2d 404, 408-09 (1991); People v. Foskey, 136 Il.

2d 66, 76 (1990); see also People v. Besser, 273 Ill. App.

3d 164, 167 (1995).

The fourth amendment to the United States Constitu-

tion guarantees the “right of the people to be secure in

their persons, houses, papers, and effects, against un-

reasonable searches and seizures.” U.S. Const., amend.

IV. This provision applies to all seizures of the person,

including seizures that involve only a brief detention

short of traditional arrest. United States v. Brignoni-

Ponce, 422 U.S. 873, 878, 45 L. Ed. 2d 607, 614, 95

S. Ct. 2574, 2578 (1975); People v. Smithers, 83 Ill. 2d

430, 433-34 (1980). In Terry v. Ohio, 392 U.S. 1, 20 L.

Ed. 2d 889, 88 S. Ct. 1868 (1968), the United States

Supreme Court held that the public’s interest in ef-

fective law enforcement makes it reasonable to detain

and question individuals under certain circumstances

in which probable cause to arrest is lacking. However,

in order to protect “the individual’s right to personal

security free from arbitrary interference by law officers”

(Brignoni-Ponce , 422 U.S. at 878, 45 L. Ed. 2d at 615,

App. 4

95 S. Ct at 2579), the Terry Court held that such lim-

ited investigatory stops are permissible only upon a

reasonable suspicion based upon specific and articulable

facts that the person has committed, or is about to

commit, a crime. Terry, 392 U.S. at 21-22, 20 L. Ed. 2d

at 906, 88 S. Ct. at 1880; Smithers, 83 Ill. 2d at 434.

This Terry standard has been codified in our Code of

Criminal Procedure of 1963. People v. Flowers, 179 Ill.

2d 257, 262 (1997); People v. Long, 99 Ill. 2d 219, 228

(1983). Section 107-14 of the Code provides, in perti-

nent part: “A peace officer *** may stop any person in

a public place for a reasonable period of time when the

officer reasonably infers from the circumstances that

the person is committing, is about to commit or has

committed an offense ***.” 725 ILCS 5/107-14 (West

1994). The same standard is applied in determining the

propriety of an investigatory stop under article I, sec-

tion 6, of the Illinois Constitution of 1970 (Ill. Const.

1970, art. I, §6). See People v. Tisler, 103 Ill. 2d 226,

242-43 (1984) (the protection against unreasonable

searches and seizures under the Illinois Constitution is

measured by the same standards as are used in defin-

ing the protections contained in the fourth amendment

to the United States Constitution).

Turning to the case before us, defendant contended on

direct appeal that the trial court erred in denying his

motion to suppress because his presence in a high-crime

area and flight from police were insufficient to justify

his investigatory stop. The appellate court agreed, but

found the record “simply too vague to support the in-

ference that defendant was in a location with a high

incidence of narcotics trafficking” and limited its hold-

ee er ee oe ee ee

App. 5

ing accordingly. 287 Ill. App. 3d at 370-71. However, we

believe Officer Nolan’s uncontradicted and undisputed

testimony, which was accepted by the trial court, was

sufficient to establish that the incident occurred in a

high-crime area. See Ornelas v. United States, 517 U.S.

690, 699, 134 L. Ed. 2d 911, 920, 116 S. Ct. 1657, 1663

(1996) (as a general matter determinations of reason-

able suspicion and probable cause should be reviewed

de novo on appeal, but reviewing court should take care

both to review findings of fact only for clear error and

to give due weight to inferences drawn from those facts

by judges and local law enforcement officers). Thus, the

issue presented by this appeal is whether an individu-

al’s flight upon the approach of a police vehicle patrol-

ling a high-crime area is sufficient to justify an investi-

gative stop of the person. Defendant contends that such

flight alone is insufficient to create a reasonable sus-

picion of involvement in criminal conduct. We agree.

A majority of jurisdictions addressing this issue have

held that flight alone is insufficient to justify a Terry

stop. See, e.g., State v. Tucker, 136 N.J. 158, 642 A.2d

401 (1994); State v. Hicks, 241 Neb. 357, 488 N.W.2d

359 (1992); People v. Shabaz, 424 Mich. 42, 378 N.W.2d

451 (1985); People v. Aldridge, 35 Cal. 3d 473, 674 P.2d

240, 198 Cal. Rptr. 538 (1984); People v. Thomas, 660

P.2d 1272 (Colo. 1983); Watkins v. State, 288 Md. 597,

420 A.2d 270 (1980). “Instead, courts require proof of

some independently suspicious circumstance to corrobo-

rate the inference of a guilty conscience associated with

flight at the sight of the police. [Citations.]” Hicks, 241

Neb. at 362-63, 488 N.W.2d at 363; see also Tucker,

136 N.J. at 169, 642 A.2d at 407 (for departure to take

on the legal significance of flight, there must be some

App. 6

circumstances present and unexplained which, in con-

junction with the leaving, reasonably justify an infer-

ence that it was done with a consciousness of guilt and

pursuant to an effort to avoid an accusation based on

that guilt).

In Hicks, the Nebraska Supreme Court examined a

number of these “location plus evasion” cases and, in a

well-reasoned opinion, concluded:

“(Ajllowing flight alone to justify an investiga-

tive stop would undercut the very values Terry

sought to safeguard. Terry is based in part upon

the proposition that the right to freedom from

arbitrary governmental intrusion is as valuable

on the street as it is in the home. Thus, while

a police officer does not violate the Fourth

Amendment by approaching an individual in a

public place and asking if the person will an-

swer some questions, neither is the person

under any obligation to answer. Florida v.

Royer, 460 U.S. 491, 103 S. Ct. 1319, 75 L. Ed.

2d 229 (1983). The person may decline to listen

to the questions at all and simply go on his or

her way. Jd. If the option to ‘move on’ is chosen,

the person ‘may not be detained even momen-

tarily without reasonable, objective grounds for

doing so; and his refusal to listen or answer

does not, without more, furnish those grounds.’

460 U.S. at 498.

*** Flight upon approach of a police officer

may simply reflect the exercise—‘at top speed’—

of the person’s constitutional right to ‘“move

on.”’ Shabaz, 424 Mich. at 63, 378 N.W.2d at

460. Terry and Royer stand for the proposition

that exercise of this constitutional right may not

ee ee

App. 7

itself provide the basis for more intrusive police

activity.

KKK

A prime concern underlying the Terry decision

is protecting the right of law-abiding citizens to

eschew interactions with the police. Authorizing

the police to chase down and question all those

who take flight upon their approach would un-

dercut this important right and upset the bal-

ance struck in Terry between the individual’s

right to personal security and the public’s inter-

est in prevention of crime. We therefore join

those jurisdictions holding that flight from a po-

lice officer is sufficient to justify an investiga-

tory stop only when coupled with specific knowl-

edge connecting the person to involvement in

criminal conduct. [Citations.]” Hicks, 241 Neb.

at 363-64, 488 N.W.2d at 363-64.

Although no Illinois court has specifically considered

whether sudden flight from police in a high-crime area

justifies a stop, we agree with the appellate court that

“{iJn Illinois, neither a person’s mere presence in an

area where drugs are sold (People v. Harper, 237 IIl.

App. 3d 202, 205, 603 N.E.2d 115 (1992)) nor sudden

flight (People v. Rivera, 233 Ill. App. 3d 69, 77, 598

N.E.2d 423 (1992)) alone will justify a Terry stop.” 287

Ill. App. 3d at 370; see also People v. Fox, 97 Ill. App.

3d 58 (1981) (driving away at approach of marked

police vehicle not a justification for stop). Moreover,

this court has recently emphasized the importance of

protecting the freedom to engage in such harmless

activities as “loafing, loitering, and nightwalking” and

other personal liberties of citizens, including the right

to travel, to locomotion, to freedom of movement, and to

App. 8

associate with others. City of Chicago v. Morales, 177

Ill. 2d 440, 459-60 (1997), cert. granted, _ _ U.S. _,

140 L. Ed. 2d 664, 118 S. Ct. 15.

In Morales, we found that a City of Chicago ordinance

which prohibited certain individuals from loitering in

public places violated substantive due process because

it unreasonably infringed on “the personal liberty of

being able to freely walk the streets and associate with

friends.” Morales, 177 Ill. 2d at 460-61. We find similar-

ly unreasonable the State’s proposal, in the instant

case, that every person observed in “sudden and un-

provoked flight” from an officer may be stopped regard-

less of whether the surrounding circumstances indicate

the person is involved in criminal activity. Cf. People v.

Holdman, 73 [ll. 2d 213 (1978) (defendants’ flight fol-

lowing officers’ shining bright light into vehicle they

reasonably believed to be associated with fugitive for

whom they had warrant was indication of criminal

activity requiring police pursuit). As defendant sug-

gests, “[i]f the police cannot constitutionally force other-

wise law-abiding citizens to move, the police cannot

force those same citizens to stand still at the appear-

ance of an officer.” Therefore, because we agree with

the majority of courts that view the unequivocal flight

of a suspect upon seeing police as not alone indicative

of criminal activity, we now examine the record herein

to determine if there are corroborating circumstances

sufficient to create the reasonable suspicion necessary

for the stop of defendant.

The case before us is factually similar to People v.

Mamon, 173 Mich. App. 429, 435 N.W.2d 12 (1988),

rev'd on other grounds, 435 Mich. 1, 457 N.W.2d 623

App. 9

(1990). There, two police officers were driving on rou-

tine patrol in a marked squad car through an area

known for narcotics activity. As the officers approached

the defendant, Mamon, standing on corner near a pub-

lic phone, he took off running. The officers pursued the

defendant on foot, noticing that he removed a case from

his pocket and dropped it during the chase. The officers

ultimately caught the defendant and retrieved the case,

which contained cocaine. The trial court quashed an in-

formation charging the defendant with possession of a

controlled substance, and the State appealed.

The Michigan appeals court affirmed the trial court’s

decision, first addressing the circumstances existing be-

fore the defendant began to run. Though the incident

occurred in a high-crime neighborhood, the court deter-

mined that a person’s presence in such an area cannot,

by itself, provide the basis for an investigatory stop. In

so doing, the court noted that the officers were not

responding to a particular complaint of wrongdoing in

the area and that the defendant made no furtive ges-

tures prior to seeing the officers. Concluding that the

officers lacked an articulable basis for stopping the de-

fendant as he stood on the corner, the court turned to

the significance of his flight upon their approach. Not-

ing the ambiguous nature of flight as an indicator of

guilt, the court held that the act of running at the sight

of police patrolling a high-crime area did not provide

the particularized grounds necessary to support a

reasonable suspicion that criminal activity was afoot.

Mamon, 173 Mich. App. at 435-35, 435 N.W.2d at 14-

16.

Here, similar to Mamon, Officers Nolan and Harvey

were “caravaning” with several other police vehicles

App. 10

when the incident occurred: They were not responding

to any call or report of suspicious activity in the area.

Though Officer Nolan testified that that area of the

11th District is known for “high narcotics traffic,” we

agree with our appellate court’s opinion in Harper, 237

Ill. App. 3d at 205-06, and the numerous decisions from

other jurisdictions, holding that a person’s presence in

such an area by itself does not warrant a suspicion that

that person is involved in crime. See Brown v. Texas,

443 U.S. 47, 61 L. Ed. 2d 357, 99 S. Ct. 2637 (1979);

Hicks, 241 Neb. at 366, 488 N.W.2d at 365; Shabaz, 424

Mich. at 60, 378_N.W.2d at 459; see also In re D.dJ., 532

A.2d 138, 143 (D.C. App. 1987) (innocent activities do

not become sinister by the mere fact that they take

place in a high-crime area).

It is also clear that defendant herein gave no outward

indication of involvement in illicit activity prior to the

approach of Officer Nolan’s vehicle. Defendant was sim-

ply standing in front of a building when the officers

drove by. As in Mamon, the officers lacked an artic-

ulable basis for suspecting defendant of involvement in

criminal activity prior to the point at which he turned

and ran.

In Fox, the Illinois case which most closely approxi-

mates the issue presented herein, the appellate court

foreshadowed our concerns, stating:

“At the time of the stop, the investigating of-

ficers were aware that ‘partying and littering’

had recently occurred in the *** area and also

that the vehicle in which the defendant was rid-

ing as a passenger exited the area at a speed

which one officer believed to be unreasonable

upon the approach of a squad car. But, the of-

App. 11

ficers testifying on behalf of the State did not

relate that any additional suspicious or unusual

activities that would have alerted the police to

the possibility of criminality were carried on by

the occupants of the automobile. ***

In short, the evidence adduced in this case

does not support the State’s contention that the

police were aware of specific and articulable

facts to justify the stop here. Rather, the evi-

dence suggests that the police officers were

operating under a suspicion or hunch that the

vehicle contained someone who had committed

or was about to commit a crime.” (Emphasis

added.) Fox, 97 Ill. App. 3d at 63-64.

Here, as in Fox, in the absence of circumstances cor-

roborating the conclusion that defendant was involved

in criminal activity, Officer Nolan’s testimony reveals

nothing more than a hunch.

As our brethren on the Supreme Court of Colorado

have so aptly stated:

“We are aware that the weighty social objec-

tive of crime prevention might well be served by

permitting stops and detentions without any re-

quirement of a reasonable suspicion that crimi-

nal activity has occurred or is about to take

place. In the absence of specific and articulable

facts supporting the reasonable suspicion, how-

ever, ‘the balance between the public interest

and (defendant’s] right to personal security and

privacy tilts in favor of freedom from police

interference.’ Brown v. Texas, [443 U.S.)} at 52,

99 S. Ct. at 2641, 61 L. Ed. 2d at 363.” Thomas,

660 P.2d at 1277.

App. 12

Where, as here, the police stop is not based upon ob-

jective criteria pointing to a reasonable suspicion of

criminal activity, “the risk of arbitrary and abusive

police practices exceeds tolerable limits.” Brown v.

Texas, 443 U.S. at 52, 61 L. Ed. 2d at 363, 99 S. Ct. at

2641.

Therefore, because Officer Nolan was not able to

point to specific facts corroborating the inference of

guilt gleaned from defendant’s flight, his stop and sub-

sequent arrest of defendant were constitutionally in-

firm. U.S. Const., amend. IV; Ill. Const 1970, art. I, $6.

The appellate court, therefore, properly reversed the

trial court’s denial of defendant’s motion to suppress

evidence. The weapon that was the basis for defen-

dant’s conviction should have been suppressed as the

product of the unconstitutional seizure of his person.

Wong Sun v. United States, 371 U.S. 471, 488, 9 L.Ed.

2d 441, 455, 83 S.Ct. 407, 417 (1963).

For the foregoing reasons, the judgment of the appel-

late court, reversing the judgment of the circuit court,

is affirmed.

Appellate court judgment affirmed.

App. 13

APPENDIX B

Opinion of The Appellate Court of Illinois

First District, Second Division

No. 1-96-0094, Filed March 18, 1997

PEOPLE OF THE

STATE OF ILLINOIS,

Plaintiff-Appellee,

Appeal from the

Circuit Court of

Cook County

No. 95 CR 26952

v.

SAM WARDLOW,

Defendant-Appellant.

we ee ee ee ee ee ee ee ee”

JUSTICE DiVITO delivered the opinion of the court:

Following a bench trial, defendaat Sam Wardlow was

found guilty of unlawful use of a weapon by a felon and

was sentenced to two years’ imprisonment. The sole

issue in this appeal is whether the circuit court erred

in denying defendant’s motion to suppress the gun that

was seized from him during an investigatory stop. For

the reasons that follow, we conclude that defendant’s

motion to suppress should have been granted and we

reverse his conviction.

At the hearing on defendant’s motion to suppress,

Officer Timothy Nolan testified tnat on September 9,

1995, he and his partner, Officer Harvey, were assigned

to the special operations section of the Chicago police

department. They were among eight officers in four

cars who were driving eastbound on West Van Buren.

Officer Nolan’s car was iast in the line of vehicles

driving in the area. Although Officer Nolan could not

App. 14

recall whether his car was marked, he and his partner

were in uniform. There was no evidence concerning

whether any of the other cars were marked or concern-

ing the clothing of the other officers.

The cars were “caravaning” eastbound down Van

Buren, when Officer Nolan observed defendant, who

was not violating any laws, standing near the front of

4035 West Van Buren Street. Defendant looked in the

officers’ direction, then fled. Holding a white bag under

his arm, he ran through a gangway and then through

an alley. Officer Nolan drove south, observing defen-

dant as he ran. Near 4036 West Congress, defendant

ran towards him.

Officer Nolan exited his car and stopped defendant.

Without announcing his office or asking any questions,

he conducted a protective pat-down search of defendant.

He could not see inside the plastic bag that defendant

was carrying. He patted the outside of the bag and “felt

a hard object that had a similar shape to a revolver or

a gun.” Officer Nolan believed the object, which was

very heavy, to be a weapon. He looked inside the bag

and found a .38-caliber handgun containing five live

rounds of ammunition. He then placed defendant under

arrest.

Officer Nolan testified that he and the other officers

had gone to the area because it was “one of the areas

in the 11th District that’s high narcotics traffic.” Based

upor his experience with investigation of areas in

which narcotics are sold, Officer Nolan knew that it

was common to find weapons in the vicinity of such

areas.

App. 15

The police report indicated that defendant, who was

44 years old, was arrested at 12:15 p.m.

The circuit court denied the motion to suppress. A

stipulated bench trial followed, and defendant was

found guilty of unlawful use of a weapon by a felon and

was sentenced to a two-year term of imprisonment.

In this appeal, defendant contends that the circuit

court erred in denying his motion to suppress because

his presence in a high crime area and flight from the

police officers were insufficient to justify his investiga-

tory stop. We note that although no Illinois court has

considered whether sudden flight from police officers in

a high crime area justifies a stop, other jurisdictions

are divided on the question. Compare Harris v. State,

205 Ga. App. 813, 423 S.E.2d 723 (1992), and State °

White, 660 So. 2d 515 (La. Ct. App. 1995) (flight from

police officers in high crime area justifies investigatory

stop), with People v. Holmes, 81 N.Y.2d 1056, 619

N.E.2d 396, 601 N.Y.S.2d 459 (1993), affirmed, 89

N.Y.2d 838 (1996), Hopkins v. State, 661 So. 2d 774

(Ala. Crim. App. 1994), Britt v. State, 673 So. 2d 934

(Fla. App. 1996), and State v. Hicks, 241 Neb. 357, 488

N.W.2d 359 (1992) (flight from police officers in high

crime area does not justify stop).

Where, as here, there is no challenge to the facts or

the credibility of the witnesses, we review a motion to

suppress de novo. People v. Foskey, 136 Ill. 2d 66, 76,

554 N.E.2d 192 (1990); Ornelas v. United States, 517

US.__, ___, 184 L. Ed. 2d 911, 920, 116 S. Ct. 1657,

1663 (1996).

Under Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889, 88

S. Ct. 1868 (1968) (codified at 725 ILCS 5/107-14 (West

App. 16

1994)), a police officer may stop and detain a person for

temporary questioning if the officer reasonably infers

from the situation that the person is committing, is

about to commit, or has committed a crime. Terry, 392

U.S. at 22, 20 L. Ed. 2d at 906-07, 88 S. Ct. at 1880. To

justify an investigatory stop, the police officer must be

able to point to specific and articulable facts that rea-

sonably warrant the intrusion. Terry, 392 U.S. at 21, 20

L. Ed. 2d at 906, 88 S. Ct. at 1880. In determining

whether a stop is reasonable, the court employs an ob-

jective standard: would an officer of reasonable caution,

knowing the facts available at the time of the stop,

believe the action was appropriate? People v. Rivera,

272 Ill. App. 3d 502, 504-05, 650 N.E.2d 1084 (1995),

appeal denied, 164 Ul. 2d 577, 660 N.E.2d 1277 (1995).

In Illinois, neither a person’s mere presence in an

area where drugs are sold (People v. Harper, 237 Ill.

App. 3d 202, 205, 603 N.E.2d 115 (1992)) nor sudden

flight (People v. Rivera, 233 Ill. App. 3d 69, 77, 598

N.E.2d 423 (1992)) alone will justify a Terry stop. Past

criminal activity in an area (People v. Hunt, 188 III.

App. 3d 359, 362, 544 N.E.2d 118 (1989), appeal denied,

128 Ill. 2d 668, 548 N.E.2d 1074 (1989)) and flight

(Rivera, 233 Il. App. 3d at 77), however, are relevant

factors to be ccnsidered in determining whether circum-

stances justify an investigatory stop.

For example, in People v. Rivera, 233 Ill. App. 3d 69,

76-77, 598 N.E.2d 423 (1992), police officers entered the

defendant’s bar, having received information that co-

caine was stored in the basement and the defendant

was involved in its sale and distribution. According to

the testimony of the police officers, the defendant ap-

ee ee

i i

a

App. 17

peared frightened and fled when they entered the bar.

Rivera, 233 Ill. App. 3d at 77. The court found that the

flight of defendant, combined with the information

known to the officers, provided the requisite reasonable

suspicicn. Rivera, 233 Ill. App. 3d at 77.

From the record before us, we cannot discern the

precise location of the area known by the officers to

have a high incidence of narcotics trafficking. After he

testified that he noticed defendant at 4035 West Van

Buren, Officer Nolan was asked why he went to that

area. He responded that it was one of the areas in the

llth District that had “high narcotics traffic.” His

testimony indicates only that the officers were headed

somewhere in the general area. There was no evidence

that the officers were investigating the specific area

where defendant had been standing or that any of the

police cars had stopped at that location or that defen-

dant had any basis for believing that police were in-

terested in his activity.

Officer Nolan testified that he was “caravaning” down

West Van Buren when he noticed defendant. He did not

testify that the officers were targeting 4035 West Van

Buren because it was known to be a location where

drugs were sold. From the evidence elicited at the

hearing on the motion to suppress, it appears that the

officers were simply driving by, on their way to some

unidentified location, when they noticed defendant

standing at 4035 West Van Buren. The record here is

simply too vague to support the inference that defen-

dant was in a location with a high incidence of narcot-

ics trafficking or, for that matter, that defendant’s

flight was related to his expectation of police focus on

him.

App. 18

Because we find no support in the record for the

contention that defendant was in a high crime location,

we are left only with the fact of his sudden flight from

an area past which police officers were driving. That

circumstance alone does not satisfy the requirements

for a lawful investigatory stop. Rivera, 233 Ill. App. 3d

at 77. Accordingly, the circuit court erred in denying

defendant’s motion to suppress.

We emphasize the limited nature of our holding. Be-

cause we recognize the importance of the police interest

in investigating crime, we do not hold that the presence

of a suspect in a high crime location, together with his

subsequent flight from police, is never grounds for a

Terry stop. Certainly, a “high crime area is a place in

which the character of the area gives color to conduct

which might not otherwise raise the suspicion of an

officer.” White, 660 So. 2d at 519. To pass constitution-

al muster, however, the high crime area should be a

sufficiently localized and identifiable location. This lim-

itation is necessary to “assure that an individual’s rea-

sonable expectation of privacy is not subject to arbi-

trary invasions solely at the unfettered discretion of

officers in the field,” simply because he or she happens

to live in a neighborhood where crime is prevalent.

Brown v. Texas, 443 U.S. 47, 51, 61 L. Ed. 2d 357, 362,

99 S. Ct. 2637, 2640 (1979).

Accordingly, the weapon that was the basis for de-

fendant’s conviction should have been suppressed be-

cause it was discovered as a result of an unjustified

investigative stop. Wong Sun v. United States, 371 U.S.

471, 488, 9 L. Ed. 2d 441, 455, 83 S. Ct. 407, 417

(1963). Rather than remanding, we reverse defendant's

App. 19

conviction outright because the State will not be able

to prevail without the recovered evidence. People v.

Evans, 259 Ill. App. 3d 650, 659, 631 N.E.2d 872

(1994).

The judgment of the circuit court is reversed.

Reversed.

RAKOWSKI and McNULTY, JJ., concur.